ABSTRACT
Like common law courts, both New Zealand and Australian Courts have had to deal with difficult civil claims arising out of child neglect or abuse. 1 This is especially so when those claims involve allegations that the neglect or abuse was either perpetrated or could have been prevented by those caring for or educating children on behalf of the community. This paper deals with the small proportion of cases that reach the courtroom and the legal theories that courts have employed, or at least might employ, to resolve these cases. In S v Attorney-General Blanchard J was hopeful that imposing liability on the New Zealand Government for acts of foster parents might have a beneficial impact on the quality of foster care: 2
This result may provide an incentive for the State to take even greater precautions in the future for the protection of children in its care by way of vetting and monitoring of foster parents. We do not see that as likely to affect the Department’s trust in people who take on this role to an extent which has an adverse impact on the relationship.
If those efforts are successful even in only a few cases in preventing or limiting abuse of a child, there may well be savings in social costs of the kind to which Ms Cooper drew attention, to which we would add the costs of accident compensation claims by sexual abuse victims now that all emerging cases of child abuse are covered under the current legislation.
One suspects that the real story is elsewhere, and that rather than relying on the tort system to provide the correct incentives to social welfare agencies to prevent harm occurring to children, or to compensate or rehabilitate victims of abuse, the solution to either issue lies outside the courtroom, especially given the reality that the S case involved allegations of over 30 years ago. New Zealand and Australian courts have employed similar methodologies, the law of negligence and vicarious liability, but have sometimes reached different 118results to those reached in the United Kingdom and Canada in resolving neglect and abuse cases bought before them. In New Zealand it has been held that it is possible to bring negligence actions against care and protection agencies for failing to protect children, at least in some circumstances, while the New South Wales courts have at least contemplated such actions but have emphasised the difficulty in establishing that such a duty has been breached. New Zealand courts appear to have adopted an expansive view of vicarious liability that perhaps accords with that adopted in Canada and maybe in the United Kingdom while the High Court of Australia has more recently adopted a more sceptical approach to vicarious liability.